Kam Kong Dyeing Factory v. Authority
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Air Pollution Control Ordinance, Cap. 311 – Applications from prospective factory operators for licence to erect burners, boilers and chimneys were rejected by The Air Pollution Control Authority – Rejection was wholly based on S.9 of the Ordinance on the ground that the applicant’s chimneys were, by the emission of air pollutant, causing or contributing to the existence or imminence of air pollutant nuisance – Findings of the Appeal Board of an error in law by the Authority in that applicants’ chimneys were not yet in existence and could not a fortiori cause or contribute to air pollution – Appeal is allowed and the decision of the Authority is reversed. IN THE AIR POLLUTION CONTROL APPEAL BOARD AIR POLLUTION APPEAL NO. 1 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL NO. 2 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL NO.3 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL No.4 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL NO.5 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL No.6 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL NO.7 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL NO.8 OF 1987 BETWEEN
________________ AIR POLLUTION APPEAL NO.9 OF 1987 BETWEEN
________________ Coram: Appeal Board in Court Dates of Hearing: 9th-14th and 16th-20th March, 1987 Date of delivery of judgment: 27th April, 1987 ________________ JUDGMENT ________________ 1. This is the judgment of the Appeal Board in respect of a group of appeals brought under the provisions of Air Pollution Control Ordinance, Cap.311 (the Ordinance). 2. At the outset it is pertinent to mention that the Ordinance, which replaced the Clean. Air Ordinance of 1959 and came into operation on 1st October 1983, was, as its name implies, enacted with the object of making provision for the abatement, prohibition and control of pollution of the atmosphere. 3. For the purposes of carrying out the provisions of the Ordinance, it is laid down under S.4(1) that the Governor may appoint a public officer to be the air pollution control authority (the Authority). From the inception of the Ordinance to 31/3/86 the Commissioner of Labour was the person so appointed and it was not until the establishment of the Environmental Protection Department (EPD) on 1/4/86 that the said appointment was vested in an officer nominated by that department. 4. It is not in dispute that the Tsing Yi Industrial Centre (the Centre) was built by its owner for sale/lease of flatted premises therein for industrial and/or godown purposes. At some time subsequent to completion of its component blocks the Centre became the scene of unusual rush for erection of burners, boilers and chimneys, so much so that by November 1986 there were, within the Centre, many factories being operated on heavy fuel and having 32 chimneys or stacks on the roof top of the building. The spate of applications for licence to install chimneys at the Centre continued unabated from November 1986 onwards although the majority thereof was rejected. Among the victims of that rejection are the appellants who, for convenience's sake, can be grouped under 3 categories: (1) Category A
(2) Category B
(3) Category C
5. It is the Authority's refusal to issue chimney licence on first application by A1-A6, and on re-application by A7-A9 that gave rise to the present appeals. In this connection it should be noted that A6 had failed to appear at the hearing, either through their owner/partner or legal representative, and was therefore deemed to have abandoned their appeal. 6. Mr. F. Tromp (RW1), who became head of the Air Control group of Environmental Protection Department on 1/10/86, also assumed the Authority's mantle of office as from that date. Be plays a dual role in these proceedings, being the Respondent's main witness as well as expert witness. It is his evidence that as from 1/10/86 he had approved 5 applications concerning licence for the erection, at the Centre, of chimneys and boilers using heavy oil. However, around 6/11/86 his attention was drawn by his field officers to the increased incidence of complaints from occupants of buildings, such as Ching Pak and Ching Yeung House, which are situated in the neighbourhood of the Centre and form part of Cheung Ching Estate, that sour smell, black smoke and soot were being emitted from the chimneys of the Centre and became a threat to human health and a nuisance to premises in the vicinity. Testimony on those complaints directly or indirectly came from these witnesses: 7. (1) PANG Yui-kwong (RW2), sergeant of Marine Police who had lived at Ching Pak House since 1978. He stated that from October 1986 smell similar to that of a burning stove being extinguished occurred twice a day at around 8.00 a.m. and 1.00 p.m. and lasted 15 minutes each time. That odour caused him difficulty in breathing and his children's eyes to water. He added that whilst the odour was smelt, soot also collected at his windows and settled on his clothes that were hung outside the flat for drying. 8. (2) Miss LEE Mui-sheung (RW3) Principal of Yip Kei Nam Memorial College since 1985. She, too, began to smell an acidic odour in October 1986 and, fearing for the health of her pupils and staff, ordered that windows of the school should be closed. In addition, she saw smoke coming from the Centre and found coal dust having been deposited on the floor of her building. 9. (3) TSE Sai-kit (RW4) Officer of Tsing Yi Social Service Centre. In November 1986 he received complaint of smoke emission from the community of his area of work and set up a committee to conduct a survey of residents of 3 residential blocks of Cheung Ching Estate on 20/11/86. The result (Exh. R22) disclosed that people involved (a) smelt a sour odour which was like that from burnt plastic and came from bleaching and dyeing factories of the Centre, (b) perceived dust and smoke which also emanated from that Centre and (c) felt that the combined effect of those matters in the air gave rise to dry throat, dizziness and nausea. 10. (4) TING Hiu-wah (RW5), taxi driver and LEE Kwai-mui (Rw6) housewife. Their story is not greatly different from that of RW2. However, they could not say whether or not the smell occurred at the same time as they saw smoke coming out of the chimneys of the Centre. 11. Believing that an unacceptably high quantity of sulphur dioxide (S02) might exist in the vicinity of the Centre, RW1 commissioned Dr. H.F. Chan, a scientist colleague who belonged to another section called Air Policy Group, to carry out a survey to predict the likely atmospheric sulphur dioxide concentration at that district. Dr. Chan performed that assignment by stages. 12. On 10/12/86 RW1 received Dr. Chan’s preliminary result in which a computer modelling analysis, referred to as “Industrial Source Complex” (ISC) model, similar to that used in USA, was adopted. That result, which had not taken into account the special features surrounding the Centre, indicated that concentration of sulphur dioxide at four nearest buildings, including a school, might exceed the then proposed Air Quality Objectives (AQO). Nevertheless, pending refined calculations to include the turbulent effect of the building wake of the Centre, RW1 stated that he gave to A1 and A8, whose applications reached his desk between 11/12/86 and 23/12/86 (dates of his receipt of the preliminary result and the first report of Dr. Chan) what he termed "the benefit of the doubt". By this expression what he did was that, instead of issuing an outright rejection, his refusal was qualified in that it was accompanied by an advice to those two applicants to use light instead of heavy fuel. He went on to say that the advice to increase the height of chimney or to use light oil was to give him additional time to await Dr. Chan' s report - he was required by the Ordinance to give approval or reject an application within 28 days of receipt of it --so that if the prediction later turned out to be wrong, i.e., there was no pollution, he would inform the applicants concerned to revert to the use of heavy oil. 13. Assistance to the uninitiated on the meaning of these two types of oil can be found in RW1's explanatory notes (Exh. R2) as follows:
14. The law or Air Quality Objectives can be found from the following provisions:
15. According to RW1, the Secretary of Health and Welfare received from Environmental Protection Department advice which he subsequently adopted as a basis for Air Quality Objectives, i.e., the maximum level of pollution acceptable in order to protect public health. RW1 elaborated that that advice took into account the effect on human beings by the concentration of pollutant to which they would be exposed and the duration of such exposure. It was also his explanation that the basis of that effect is that people could be subjected to high concentration over a short period of time without ill effect but that, if they were exposed for a longer period, could suffer from adverse consequences. In his words, that was one reason why the Air Quality Objectives were related to different averaging times and the report by the Health and Welfare Branch of Government Secretariat to the Environmental Pollution Advisory Committee, of which Environmental Protection Department was a member, culminated in the relevant legislation being published in the following Gazettes: (1) No. L.N. 312/86 of 24/12/86. Declaration of Tsuen Wan - Kwai Chung Air Control Zone under s.6 of the Ordinance. This zone includes Tsing Yi Island. (2) No. L.N. 1/87 or 2/1/87 - Air Quality Objectives applicable to Tsuen Wan - Kwai Chung Air Control Zone under S.7 of the Ordinance. A - Sulphur Dioxide
16. As far as some appellants are concerned, "Judgment Day" came when Dr. Chan submitted his .First Report (Exh; R6) to RW1 on 23/12/86. In his conclusions at page 13, Dr. Chan stated, among other things, that:
17. RW1 said that he adopted Dr. Chan's report and rejected the applications of A2, A3, A4, A5 and A6 on 23/12/86, that of A7 on 24/12/86, that of A8 on 19/1/87 and. that of A9 on 21/1/87, while at the same time advising them to use either LP gas (liquefied petroleum) or town gas which would emit no SO2. He considered the implementation of his said advice to be feasible, although he did not rule out the possibility that problems on the laying of pipes, modification of burner and/or storage of gas cylinders might arise. He further estimated that the resulting cost of town gas (domestic tariff) and LP gas would respectively be 3 times and 2.7 times of heavy fuel. 18. At some time in February 1987 RW1 caused a Project Team, including Dr. Chan and RW1 himself as members, to undertake another survey which consisted of actual measurements of ambient levels of SO2 and the suspended particulates at Cheung Ching Estate. The outcome of this second survey was contained in the report of March 1987 (Exh. R7) which RW1 claimed to support the prediction of the first report. Useful as this second report may be to the Respondent} it is, in our opinion, irrelevant to the issue because it took place after the event. Appellants' case 19. Evidence from appellants' representatives is basically similar. They all visited the Centre during the third quarter of 1986 and noticed the presence of chimneys there. From information obtained through friends they believed that chimney licences would be easily obtained for factories using heavy fuel such as those in their field of dyeing, bleaching, heat-setting and sizing, if those factories were to be operated at the Centre. That belief, which was not denied by RW1 as being then true and prevalent, led to appellants' decision to set up their factories at the Centre and the consequential flurry of their activities, viz., the purchase of their premises at that building, the ordering of the essential machines and equipment, the decoration of the place and the commitment on related expenditure. 20. Whilst furnishing of their workshops was in progress, appellants were shocked to learn through Ajax Engineers and Surveyors Limited, their technical advisers; that their application for chimney licence had been rejected. Once again, appellants' cases are dealt with under the 3 categories stated in earlier paragraph. Category A - This relates to A1 alone. 21. The Authority's letter of rejection dated 12/12/86 contains, inter alia, these paragraphs:
22. A1 caused a study on advice (1) to be carried out by Cheung Wing and Associates, Structural Engineer and Architect in charge of the design and supervision of construction of the Centre, and was told that the Authority's requirement of chimney height of 170m P.D. (above mean sea level) or 106m above the roof of the 58 meter-high building would result in excessive load that the existing structure was inadequate to support according to Building (Construction) Regulations. In this regard RW1 merely said that he had not sought expert advice on taller chimney but thought that it would be more economical than the use of light oil. Here, we hold the view that RW1's Said advice on chimney is one that, in practical terms, would not generally be feasible for an existing building. 23. As regards advice (2) A1's grievance is that its application No.244 of 17/11/86 was rejected on 12/12/86, whereas Au Chau Dyeing Co.' s application No. 257 of 28/11/86 was approved on 22/12/86. On this issue we are of the opinion that, although Au Chau's application No.257 was later in time to A1's application No.244, it was, as disclosed by the Resister of Licences (Exh. R12) a re-application for use of light fuel in replacement of the original application No.222 for use of heavy fuel. In these circumstances we feel that A1's complaint of being subject to unfair treatment by RW1 is not justified, because Al was advised to use light fuel and approval of Au Chau's application was on light fuel. 24. Points of law in relation to A1's will be dealt with at et later stage, in conjunction with the case of other appellants. Category C - This is solely in connection with A8’s is case. 25. In rejecting A8's application on 12/12/86 the Authority used the exact words as in A1's case, with the exception of the reason and advice which are as follows:
26. Mr. K. Kwok, A8's counsel has a good point in saying that A8 was, and we gather, an ordinary man in the street would be, led to believe that if that advice was followed, approval would be forthcoming. In that event A8 naturally would have, for record purposes, to re-submit a plan to incorporate the implementation of that advice. There is no dispute that on 31/12/86 A8 submitted a revised plan which was again rejected by the Authority in a letter dated 19/1/87. Since this letter is, with the exception of the reason and advice, identical to the previous one and as it is the same as that sent to A1, A2, A3, A4 and A5 on 23/12/86, A7 on 24/12/86 and A9 on 21/2/87 (see summary of rejections in Exh. R13) it is appropriate that it should be set out in full. That letter is as follows:
A8's dissatisfaction is that the Authority had failed to consider its case on the merit but merely lumped it with that of other appellants when he resorted to what he termed "policy decision" on 23/12/86, that is to say, from that day onwards the Authority would reject all applications for chimney licence at the Centre unless the applicants used LP gas or town gas in operating their factories. It is worthy to note that Au Chau Dyeing Company's case, which is referred to in earlier paragraphs and stood at all four with A8's case, was successful because Au Chau Dyeing Co. submitted their revised application on 28/11/1986. Category B - This is composed of A2, A3, A4, A5, A7 and A9. Reference to it was touched upon under Category C and will also be made in the later part of the judgment. Counsel's Argument and the Board's Findings 27. Mr. B. Whaley, for the Respondent, maintains that the sole purpose of the Government regulatory machine is to enable the Authority to exercise discretion in the control and prevention of pollution of the atmosphere in Hong Kong and that Section 9 of the Ordinance is the only legal provision invoked by the Authority in refusing applications under Regulation 8 of Air Pollution Control (Furnaces, Ovens and Chimneys) (Installation and Alteration) Regulations, Cap.311. He suggests that (a) the Authority's discretion under the said Regulation 8 should not be lightly interfered with, e.g., the appellants' capital outlay, heavy though it may be, is a risk that appellants chose to take and sympathy to appellants in respect thereof should not constitute a valid ground to allow the appeal; and (b) there should be a finding of error of law or a wrong exercise of that discretion before the Board would be entitled to reverse or modify the Authority's decision. 28. We agree with Mr. Whaley that, for the purpose of this appeal, costs incurred by appellants are irrelevant. We also fine support on that aspect from Regulation 11 of the Ordinance which says:-
29. Another point of Mr. Whaley's legal argument is that the test should be to identify the mischief which Section 9 is aimed at, viz., the existence or imminence of an air pollutant nuisance. With due respect to Mr. Whaley, this view appears to be misconstrued and inference on the so-called mischief, which Mr. Whaley invites us to draw, cannot be drawn when the contents of the relevant section are clear and. unambiguous. In this connection we are alive to our duty to adopt the general canons of interpretation, i.e., to five effect to the ordinary meaning of the words used in the Ordinance and to bear in mind the provision of Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 which says:-
30. Ready reference on interpretation of the law can be found in the judgment of Fuad, J., in Joseph Edward Hotung v. Jimmy's Kitchen Ltd. (1982) HKLR 197, when the learned judge quoted the following well-known passage of Maxwell on the Interpretation of Statutes (12th edition) p.28:-
31. Mr. R. Tang, Q.C., for A1-A5, A7 and 1\9 and Mr. K. Kwok, A8's counsel, dealt at length with the interpretation and application of Regulation 8 and Sections 9 and 10. 32. For easy reference those legal provisions are set out below in full:-
33. Mr. Tang's contention is that Section 9 lays on the Authority's shoulder a duty to take action vis-a-vis a chimney owner when the Authority is of the opinion or has become aware that an air pollutant nuisance either exists or is imminent. He thus advances the argument that Section 9 by itself does not impose any obligation on, or require, such owner to comply with any notification from the Authority, so that the mere causing or contributing to the existence or imminence of air pollutant nuisance cannot amount to a contravention of Section 9. And if there is no such contravention, the Authority would have no ground to reject appellants' applications. Mr. Kwok shares this view and so does the Board. In addition, we, the Board, hold that Section 9 on its own is not meaningful in that it seems to leave a lacuna that can only be filled when it is acted in conjunction with Section 10 or in Mr Tang’s words "Section 9 needs Section 10 to bring it to life". All this means that three ingredients must be present to establish contravention of Sections 9 and 10. Those ingredients are: (1) existence or imminence of air pollutant nuisance and awareness thereof by the Authority; (2) notification by the Authority to a chimney owner to abate the emission of air pollutant; (3) failure by that owner to comply with the requirement of that notification. 34. In the present case the Respondent wholly relies on Section 9, but since (a) the mere causing or contribution to air pollutant nuisance is not a contravention of that section and (b) the appellants are not yet chimney owners and a fortiori owners of chimneys which are emitting or contributing to air pollutant nuisance, the allegation that appellants have contravened that section is, in our view, not substantiated. We therefore conclude that the 'Authority's rejection of applications by A1-A5 and A7-A9 for chimney licence at the Centre is wrong in law and should not be allowed to stand. 35. It is also the Respondent's case that A8 and A9 had, apart from being in contravention of Section 9, infringed Section 8 on air quality objectives. These two appellants' gripes are that the Authority's respective letters of rejection to them of 19/1/87 and 21/1/87 are, as stated elsewhere in this judgment, identical to those issued to A2-A7, i.e., with no reference to Section 8 and it was not until the beginning of the hearing of the appeal that Respondent's counsel produced the statement of "Particulars of Refusal of Applications to A1-A9" containing a supplementary allegation against A8 and A9 which reads:-
36. As can be seen from the early part of this judgment, the air quality objectives were published in the gazette of 2/1/87 and yet in spite of the fact that Regulation 8(2) clearly states:
the above requirement of Regulation 8(2) was completely omitted by the Authority. 37. RW1 (the Authority) said in evidence that he divided into three parts the period of his consideration of applications by operators of factories which would consume heavy fuel and his decision in respect thereof was as follows:
38. RW1 agreed with appellants' counsel that if all the existing factories at the Centre were to convert to light fuel, the emission of sulphur dioxide would be about 675.5 ug/m3, which is lower than the air quality objective of 800 ug/m3. However, RW1 confessed that, up to the hearing of this appeal, he had not found any solution to the problem of pollution at the Centre, although Section 30 empowered him to prohibit the use of heavy oil. 39. A8's additional grievance is that on 17/11/86 it submitted plans and specifications on a proposal to use heavy oil, but the Authority rejected that application on 12/12/86 and advised A8 to use light oil instead. A8 came back on 2/1/87 with a revised plan in purported compliance with the Authority's said advice but once again found its re-submission to be the subject of a simple refused, that is to say, without being told of changing circumstances or possible infringement of air quality objectives. 40. It seems strange that although A1's application and A8’s first application for use of heavy oil were filed on 17/11/86, i.e., well within the period of 1/11/86 - 10/12/86 that the Authority generally approved applications of that nature, yet just because those documents were laid in front of the Authority by his field officers on 12/12/86, which occurred two days past the deadline for approval, that they were rejected. It is all the more puzzling that the Authority gave advice to A8 to change plan and specifications in order to use light fuel in lieu of heavy fuel and later rejected, without giving reason, A8's re-application which complied with that advice. In A8's case we have no hesitation in saying that the Authority had wrongly exercised his discretion or, to put it in another way, had failed to exercise his discretion in A8's favour (Order 59/1/19 of the Supreme Court is in point). Hence, this is another reason for us to-allow A8's appeal. 41. In passing, we say that, on account of the fact that the prediction derived from the use of ISC computer model was dependent on so many assumptions, that prediction should only be used as a guide in assessing possible levels of pollution, and not as a conclusive ground on which to refuse applications for chimney licence without monitoring test results. 42. In the light of the above findings and in view of the special circumstances of the matter in dispute, it is our judgment that the appeal by A1-A5 and A7-A9 should be allowed and the Authority's refusal to approve their applications or re-applications, as the case may be should be reveased.
Messrs. R. Tang, Q.C. and Mr. M. Bharwaney & Mr. J. Poon instructed by Messrs. Liu, Chan & Lam for 1st - 5th, 7th and 9th Appellants. Messrs. K. Kwok, and Felix Pao, instructed by Messrs. David Tong & Co. for 8th Appellant. Mr. B. Whaley, Senior Crown Counsel & Mrs. E. Waller, crown Counsel for Respondent. In the Air Pollution Control Appeal Board Air Pollution Appeals Nos 1-9 of 1987 In confirm that, having considered all the evidence on this joint appeal with the two other members of the Appeal Board, I have agreed with them that the 8 appeals should be allowed. I also confirm that I have dismissed and agreed with them the terms of the judgments.
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Further hearings and rulings under DCMP 1/1987